Confirmation 'kabuki' does no justice

Supreme Court confirmation hearings are often criticized as a “kabuki” dance — a performance where nominees pretend to answer questions, and senators pretend to care what the answers are. Last week’s hearing for Judge Sonia Sotomayor will not be spared this criticism. But it will earn another: a place where both senators and nominees must pretend what judges do.

There was wide agreement last week that the job of a judge is a simple one. Judges need not “make” law; they need only “apply” the law. Law, it was agreed, should be made only by Congress, or by the American people (when they amend the Constitution). Because judges need not make law themselves, it was agreed that there is no need for them to consult their personal experiences or policy preferences when they decide cases. All they need to do is to open up a law book and read what the law tells them to do.

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Thus, disavowing a long string of speeches and articles where she had said otherwise, Sotomayor repeatedly assured senators that her personal experiences and preferences do not influence her decisions on the bench. Republican senators did not quite believe her, and they intimated that her inability to set aside her personal views made her unfit for the bench; only judges who follow the law need apply.

To legal scholars and most lawyers, this view of judges as mere conduits of law is a fiction. It has been known as a fiction for nearly one hundred years, ever since a movement called legal realism.

There was a time when lawyers believed that judging was a mechanical process: There was a right answer to every question, and, if judges thought about it long enough, they would find it. In the early 20th century, however, we wised up. Legal scholars recognized that the law is often ambiguous, and that equally intelligent judges can decide the same case differently — not because one judge is right and one is wrong, but because sometimes there are no right answers. When the law is unclear, judges have the discretion to decide which view carries the day.